Monday, September 22, 2014

Conditional Release from Insanity Civil Commitment Revoked Because Refused to Follow Group Home Rules

First, the
background to this case concerning civil commitment pursuant to 18 U.S.C. §
4243.Washington was found not guilty by
reason of insanity at a bench trial in 2009 for the charged offense of robbery
by force and violence (a threat to stab the teller with a non-existent knife in
exchange for $2,711).The district court
committed him to a mental health facility for evaluation and treatment.In 2012, the Bureau of Prisons certified that
Washington had recovered from his mental disease or defect.The district court held a hearing in April
2012 and conditionally released Washington “based on its finding, by clear and
convincing evidence, that his release under a regimen of care and treatment
would not pose a substantial risk of bodily injury to another person or serious
damage to the property of another.”One
of the conditions of Washington’s release was that he reside at a group home, and
this condition was an express component of the FMC Butner release plan.

In July
2013, the probation office filed a petition for a warrant for Washington’s
arrest alleging that he violated the condition of residing at the group
home.Testimony at the revocation hearing
established that Washington refused to sign a commitment to follow the group
home’s rules, knowing that his refusal would result in an eviction notice.One letter written by the group home’s
program director that was admitted into evidence indicated that she “supported
Washington’s exploration of less-restrictive housing options.”Another letter indicated that Washington was becoming
more aggressive to others, telling them not to report his breaking of house
rules.

The
probation officer testified that Washington was in compliance with his
medicines, completed his GED, was enrolled in community college, was not
mentally unstable, and had not been involved in any physical assaults or
criminal charges while on conditional release.The probation officer also testified, however, that she believed
Washington tried to physically intimidate her at one point and that—while she
could recommend a transitional home if an appropriate facility could be
found—Washington could not be safely maintained in the community because he was
not willing to follow the rules at any facility.

Based on
this evidence, would you find that Washington “failed to comply with the
prescribed regimen of medical, psychiatric, or psychological care or treatment,
and that his continued release will create a substantial risk of bodily injury
to another person or serious damage to the property of another”?See §
4243(g).

Well, the
district court did, and the panel affirms “[b]ecause the doctors who crafted
Washington’s release plan included residence in a group home as an express
element, and because the district court’s substantial-risk finding was not
clearly erroneous[.]”The panel tries to
curb what could “appear to lower the bar for re-commitment proceedings insofar
as . . . earlier precedents generally have addressed individuals who refused to
follow their doctors’ advice” by emphasizing that “every substantial-risk
assessment must turn on the unique factual circumstances of each case rather
than on an attempt to compare one individual to another.”

Still, a
record that simply reflects that Washington “was not getting along well with
the people around him” without any professional medical opinion as to any risk
posed by Washington’s release seems a little skim for a judicial “infer[ence]
that his increasingly verbal aggressiveness was a sign of dangerousness, or
even potential illness, rather than a sign of recovery and attendant resurgence
of his desire for autonomy.”Given
district judges’ “awesome responsibility to protect the public and to strike
the difficult balance with individual liberty,” however, the panel does not
disturb the district judge’s order.

No Realistic Possibility that Texas Possession With Intent to Distribute Was Not an Aggravated Felony or § 2L1.2 DTO

The panel acknowledges that a defendant can be convicted
under the Texas possession with intent to distribute (“PWID”) statute, Texas
Health and Safety Code section 481.112(a), for conduct that would not qualify
as a federal drug trafficking offense (“DTO”).In other words, Texas PWID is broader than a federal DTO.Texas PWID includes possession with intent to
dispense, which includes administering a controlled substance in the presence
of a practitioner.This is different
than the administering encompassed by the federal DTO definition of dispensing,
which applies only to the administration of a controlled substance pursuant to
a practitioner’s lawful order.See 21 U.S.C. § 802(10).

Even though Texas PWID does not have as an element the
administration of a controlled substance pursuant to a practitioner’s lawful
order, the panel applies the modified categorical approach to narrow Teran-Salas’
offense to possession of more than four grams of cocaine with intent to
deliver.(The panel does not explain how
this is consistent with Descamps.)

Applying a “common-sense approach,” the panel holds that, “based
on the elements of his conviction, Teran-Salas does not establish a realistic
probability that Texas would prosecute his crime under an ‘administering’
theory in a way that does not also constitute either ‘dispensing’ or ‘distributing’
under the federal sentencing guidelines.”Instead, the panel believes Teran-Salas only establishes “a theoretical
possibility that the Texas statute criminalizes conduct that would not qualify
as a [DTO, since] there is not a realistic probability that Teran-Salas was
prosecuted for engaging in medical care or research that involved administering
cocaine in amounts greater than four grams.”

Pringler was
convicted at trial of aiding and abetting sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a).The
panel affirmed the conviction, finding the evidence was sufficient (he took the
money the minor earned from prostitution, paid for hotel rooms where she met
johns, bought the laptop she used to advertise, and drove her to appointments)
and that his counsel was not ineffective by failing to move for acquittal at
the close of the Government’s case.

With regard
to sentencing, Pringler challenges the application of a 2-level increase to his
base offense level pursuant to U.S.S.G. § 2G1.3(b)(3), which provides:

If the offense
involved the use of a computer or an interactive computer service to (A)
persuade, induce, entice, coerce, or facilitate the travel of, the minor to
engage in prohibited sexual conduct; or (B) entice, encourage, offer, or
solicit a person to engage in prohibited sexual conduct with the minor,
increase by 2 levels.

The Commentary to the Sentencing Guideline says that § 2G1.3(b)(3) “is
intended to apply only to the use of a computer or an interactive computer
service to communicate directly with a
minor” or the minor’s guardian.§
2G1.3 cmt. n.4.

Pringler never used a computer to communicate with the minor or her
guardian. So, the panel acknowledges
that, if it applies Note 4 of the Guideline Commentary, Pringler would not get
the enhancement. The panel rejects the
Government’s argument that Note 4 would be satisfied here because when a pimp
communicates with a third party via computer to solicit/advertise sex with a
minor, that third party might think the pimp has custody or control over the
minor.Under that scenario, the panel believes
the third party could merit the enhancement under Note 4, but not the pimp.

Thus, the panel must decide whether it can avoid giving effect to Note
4 because “it is inconsistent with, or a plainly erroneous reading” of the
Guideline.This is a question of first
impression in the Fifth Circuit, and the subject of a circuit split.The Fourth and Eleventh Circuits have found
Note 4 inapplicable and applied the enhancement based on the plain language of
the Guideline. The Third and Seventh Circuits have applied Note 4 with
different results: in the Third, the enhancement applied despite Note 4’s
language because of the third-party argument outlined (and rejected) above; in
the Seventh, the enhancement did not apply.

The panel sides with the Fourth and Eleventh Circuits because “under §
1591, there is no factual scenario for which an individual could receive the
computer use enhancement, were [the panel] to apply application note 4.”Applying Note 4, § 2G1.3(b)(3)(B) would only
apply to convictions under 18 U.S.C. § 2422(b) for knowingly persuading,
inducing, enticing, or coercing a minor to engage in prostitution.This narrow application of § 2G1.3(b)(3)(B)
leads the panel to conclude that Note 4 “can’t mean what it says.”The panel also analyzes the drafting history
of § 2G1.3(b)(3) and concludes that Note 4’s reference to subsection (3) in
general—both (3)(A) and (3)(B)—was a drafting error since, prior to 2004, that
language only applied to the equivalent of subsection (3)(A), not (3)(B).

In sum, “we hold that the commentary in application note 4 is ‘inconsistent
with’ Guideline § 2G1.3(b)(3)(B), and we therefore follow the plain language of
the Guideline alone.”Under the plain
language, the 2-level enhancement was correctly applied to Pringler since he
bought the computer, showed his partner how to use the webcam, knew the partner
and the minor were using the webcam to record encounters with customers, and
knew of his partner’s use of the computer to advertise the minor’s services.

The panel also affirms the 2-level enhancement for undue influence of
a minor under § 2G1.3(b)(2)(B). Pringler
argues that the minor voluntarily engaged in prostitution, so the
undue-influence enhancement should not apply. Since the minor testified about
her fear of leaving Pringler, however, and there was evidence that Pringler
used the physical abuse of his partner and sexual relations with the minor as
control mechanisms, the panel upholds the undue-influence application.

Friday, September 12, 2014

The receipt and payment of credit card bills by mail over
time in this case is sufficient for federal jurisdiction because the use of the
mails was part of the ongoing scheme.Traxler made unauthorized purchases (estimated to be over $60,000) on
her employer’s credit cards over the course of approximately year.Traxler moved to dismiss the indictment,
which only listed one Visa card statement being sent to her employer that
included a personal charge, for lack of jurisdiction.Traxler argued that the alleged mailing was a
routine statement from the credit card company and did not satisfy the 18
U.S.C. § 1341 mailing requirement.

For the panel, the critical question was not whether the
mailing of the statement was routine or not.“[T]he critical question is whether Traxler’s fraud was completed prior
to the transmission of documents through the mails, or if the use of the mails
was part of an ongoing scheme.”Traxler argues
that her fraud was completed at the time of the unauthorized purchases, but the
panel disagrees.Since Traxler’s
unauthorized use of the credit card occurred over the course of more than a
year and involved multiple purchases, the panel finds that her “continued fraud
depended on her employer receiving and paying the credit card bills through the
mails.” Unlike defendants whose fraud
was completed before the use of mails (and did not depend on credit card
payment), it was material to Traxler that her employer continue making payments
for her ongoing scheme to continue.So,
the mailing of the credit card bills in this instance was sufficient for
federal jurisdiction.

Defendants
Vasquez and Echeverria were jointly tried for conspiracy to possess
methamphetamine with intent to distribute.The first trial ended in a mistrial.In the second trial, the Government introduced new evidence consisting
of (1) Defendant Echeverria’s confession to a cellmate that both he and
Defendant Vasquez participated in the conspiracy, and (2) Defendant Vasquez’s
prior drug trafficking conviction.

On plain
error review, the panel found that admission of Defendant Echeverria’s
jailhouse confession through the testimony of the cellmate did not violate Bruton or Crawford even though Defendant Echeverria did not testify.The panel cited First, Third, Fourth, Sixth,
Eighth, Ninth, and Tenth Circuit cases that limit Bruton to testimonial statements only, and Defendant Vasquez never
disputed that Defendant Echeverria’s jailhouse confession was
non-testimonial.

Defendant
Vasquez also challenged the admission of his prior conviction for possession of
heroin under Federal Rule of Evidence 404(b).The Government presented evidence of this conviction through the
testimony of the California police officer who made the 1998 arrest and
testified that Defendant Vasquez “look[ed] just like the pictures” of the
individual convicted in California.In
other words, the officer had no personal recollection of Defendant Vasquez and
was relying on the information in the file.The panel found this to be sufficient evidence that Defendant Vasquez
committed the prior bad act.

Both
defendants argued on appeal that the evidence was insufficient to show that
they were knowing participants in the conspiracy, but they both failed to renew
their motions for judgment of acquittal at the close of trial.So, the convictions could only be reversed if
the convictions constituted “a manifest miscarriage of justice,” and the panel
found that they did not.